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ADVERTISING, MARKETING & PROMOTIONS >> ALERT POST-MORTEM RIGHT OF PUBLICITY UNDER NEW JERSEY LAW IS LIMITED TO 50 YEARS A federal district court in California has ruled that the post-mortem right of publicity under New Jersey common law lasts for no more than 50 years after the death of the individual whose rights are sought to be enforced. The court’s decision comes in a case brought against General Motors by The Hebrew University of Jerusalem, which claims it owns Albert Einstein’s right of publicity as a beneficiary under Einstein’s will. BACKGROUND As we have discussed (click here to read our previous Alert), the case arose after General Motors used Einstein’s face superimposed on a model’s body in an advertisement for its “Terrain” vehicle that was published in People Magazine’s “Sexiest Man of the Year” issue. Hebrew University sued General Motors in a California federal court for the commercial use of Einstein’s image without its consent. Several months ago, the court issued an order permitting Hebrew University to proceed to trial to prove that: Einstein, who passed away in 1955 while domiciled in New Jersey, would have transferred his post- mortem right of publicity under New Jersey law had he been aware that it existed at the time of his death, and; General Motors had violated that right. Hebrew University then asked the court to find that the duration of the post-mortem right of publicity was indefinite under New Jersey common law or that it lasted for 70 years after death. The court rejected Hebrew University’s arguments and ruled against it. COURT’S DECISION In its opinion, the court assumed without deciding that Hebrew University owned Einstein’s right of publicity. It then decided that a maximum duration of 50 years for the right of publicity was an appropriate balance between meaningful enforcement of the right of publicity after a famous individual’s death and the public’s interest in free expression. Because Hebrew University had not filed its case within 50 years of Einstein’s death, the court concluded that it could not pursue its claims and that there would be no trial. RULING IN CONTEXT A 50 year limit on New Jersey’s post-mortem right of publicity is less than the 70 year statutory right of publicity under California law (which is limited to California domiciliaries, and thus not applicable to Einstein). Moreover, five states in addition to DECEMBER 2012 Attorney Advertising 1105 THE BOTTOM LINE Advertisers interested in using the name, image, voice or likeness of a deceased celebrity should examine the law applicable to the deceased celebrity’s right of publicity, as well as the amount of time that the right exists. They should also make certain that all advertisements and other marketing materials that could implicate the post-mortem right of publicity are carefully vetted. >> continues on next page
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Advertising, Marketing & Promotions Alert >> Post-Mortem ......ADVERTISING, MARKETING & PROMOTIONS >> ALERT POST-MORTEM RIGHT OF PUBLICITY UNDER NEW JERSEY LAW IS LIMITED TO 50 YEARS

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Page 1: Advertising, Marketing & Promotions Alert >> Post-Mortem ......ADVERTISING, MARKETING & PROMOTIONS >> ALERT POST-MORTEM RIGHT OF PUBLICITY UNDER NEW JERSEY LAW IS LIMITED TO 50 YEARS

ADVERTISING, MARKETING & PROMOTIONS

>> ALERT POST-MORTEM RIGHT OF PUBLICITY UNDER NEW JERSEY LAW IS LIMITED TO 50 YEARS A federal district court in California has ruled that the post-mortem right of publicity under New Jersey common law lasts for no more than 50 years after the death of the individual whose rights are sought to be enforced.

The court’s decision comes in a case brought against General Motors by The Hebrew University of Jerusalem, which claims it owns Albert Einstein’s right of publicity as a beneficiary under Einstein’s will.

BACKGROUNDAs we have discussed (click here to read our previous Alert), the case arose after General Motors used Einstein’s face superimposed on a model’s body in an advertisement for its “Terrain” vehicle that was published in People Magazine’s “Sexiest Man of the Year” issue. Hebrew University sued General Motors in a California federal court for the commercial use of Einstein’s image without its consent.

Several months ago, the court issued an order permitting Hebrew University to proceed to trial to prove that:

>>>> Einstein, who passed away in 1955 while domiciled in New Jersey, would have transferred his post-mortem right of publicity under New Jersey law had he been aware that it existed at the time of his death, and;

>>>> General Motors had violated that right.

Hebrew University then asked the court to find that the duration of the post-mortem right of publicity was indefinite under New Jersey common law or that it lasted for 70 years after death. The court rejected Hebrew University’s arguments and ruled against it.

COURT’S DECISIONIn its opinion, the court assumed without deciding that Hebrew University owned Einstein’s right of publicity. It then decided that a maximum duration of 50 years for the right of publicity was an appropriate balance between

meaningful enforcement of the right of publicity after a famous individual’s death and the public’s interest in free expression.

Because Hebrew University had not filed its case within 50 years of Einstein’s death, the court concluded that it could not pursue its claims and that there would be no trial.

RULING IN CONTEXTA 50 year limit on New Jersey’s post-mortem right of publicity is less than the 70 year statutory right of publicity under California law (which is limited to California domiciliaries, and thus not applicable to Einstein). Moreover, five states in addition to

DECEMBER 2012

Attorney Advertising1105

THE BOTTOM LINE

Advertisers interested in using the name, image, voice or likeness of a deceased

celebrity should examine the law applicable to the deceased celebrity’s right of

publicity, as well as the amount of time that the right exists. They should also make

certain that all advertisements and other marketing materials that could implicate the

post-mortem right of publicity are carefully vetted.

>> continues on next page

Page 2: Advertising, Marketing & Promotions Alert >> Post-Mortem ......ADVERTISING, MARKETING & PROMOTIONS >> ALERT POST-MORTEM RIGHT OF PUBLICITY UNDER NEW JERSEY LAW IS LIMITED TO 50 YEARS

>> ALERT

DECEMBER 2012

ADVERTISING, MARKETING & PROMOTIONS

California allow the post-mortem right of publicity to reach 60 years or more (in Tennessee, the right is indefinite so long as the persona maintains commercial value; Indiana and Oklahoma, 100 years; Washington, 75 years when the persona maintains commercial value; and Ohio, 60 years).

However, a slight majority of states with statutory rights of publicity limit the right’s post-mortem duration to the same 50 years found by the Hebrew University court, or less (Florida, Illinois, Kentucky, Nevada and Texas permit the right to endure for 50 years; Pennsylvania for 30 years; and Virginia for 20 years).

FOR MORE INFORMATION Howard R. Weingrad Partner 212.468.4829 [email protected]

Sara L. Edelman Partner 212.468.4897 [email protected]

or the D&G attorney with whom you have regular contact.

Davis & Gilbert LLPT: 212.468.48001740 Broadway, New York, NY 10019www.dglaw.com

© 2012 Davis & Gilbert LLP